Recognition from the Commission

The Directive on Damages with regards to breach of the Competition Rules (Directive 2014/104/EU) has triggered some alterations to amongst other things the Commission’s leniency programme. This has resulted in a new Commission Regulation 2015/1348, amending Regulation 773/2004 relating to the conduct of proceedings by the Commission pursuant to Articles 101 and 102 TFEU.

Regulation 2015/1348 is primarily concerned with Commission investigations and the rules on access to the Commission’s file in relation to the balance between public and private enforcement of Article 101 and 102 TFEU. This instrument has added and replaced some provisions with regards to the protection of leniency statements in the Commission’s possession in “follow-on” damages claims after infringements of Article 101 and 102 TFEU. The rationale behind these codifications is to ensure a strong public enforcement of Article 101 and 102 TFEU, and therefore protect leniency applicants to a certain extent from follow-on damages claims for losses suffered because of infringements of Article 101 and 102 TFEU.

This Regulation constitutes an important change concerning leniency programmes in the EU. Current and past leniency programmes have up until now constituted soft law enforcement tools, meaning that they initially have not been legally binding for the EU institutions. This means that the Commission’s discretion as an enforcement authority has been governed both on an administrative level, as well as a legal level through the interplay between the leniency programmes and general principles of EU law. These enforcement mechanisms have been in place ever since the first Leniency Notice in 1996, but are now changed as Article 4a of Regulation 2015/1348 has codified the main principles of the Commission`s leniency programme These principles govern the conditions and requirements according to which the Commission may grant immunity from or a reduction of fines to undertakings party to secret cartels, and the rules regarding disclosure of leniency corporate statements. Whether this change will have any practical effects is difficult to say. Still, the enshrinement of the main principles of the Commission’s leniency programme into hard law is a political signal and recognition from the Commission of the importance of this type of enforcement instrument in relation to the enforcement of Article 101 and 102 TFEU.

This comment was written by BECCLE’s Ingrid Margrethe Halvorsen Barlund. SHe is currently working on her PhD-project on the Commission’s leniency programme within EU competition law. Her current interests are the regulatory framework, scope and effects of the Commission’s leniency programme as a public enforcement instrument of secret cartels, and the interplay with private enforcement of the competition rules through follow on-damages. Read more about her project…